Opinion
May 6, 1971
Order, Supreme Court, New York County, entered on February 24, 1971, unanimously reversed, on the law, on the facts and in the exercise of discretion, without costs and without disbursements, and the application denied. The divorce decree was entered on April 17, 1970. By the terms thereof the plaintiff is obligated to pay $700 monthly alimony, $400 monthly support for the younger child of the parties, a lump sum of $6,500, various medical and other bills, expenses of an undergraduate university education for the issue of the marriage, annual camp expenses for the younger son not to exceed $700 per year, medical and hospital insurance for the issue of the marriage, orthodontia dental charges for the younger child and to make testamentary provision for said issue equivalent to their intestate share. Out of a total income of $35,000 a year the plaintiff husband is required to pay in excess of $17,000. By order to show cause dated December 28, 1970, the wife sought modification of the judgment alleging a change in circumstances, to wit, a marked decline in the school performance of the younger boy requiring transfer from a junior high school located in Riverdale and placement in a private school. A change in circumstance since the time of the entry of the judgment must be established as a basis for relief. The record fails to show any such change. In fact, the contrary appears. The wife was aware of the school problem since 1968, at least two years before the entry of the 1970 decree. ( Liebmann v. Liebmann, 19 A.D.2d 821; Matzke v. Matzke, 185 App. Div. 533. ) Since the application lacks merit, the counsel fee is disallowed.
Concur — McGivern, J.P., Nunez, McNally, Steuer and Eager, JJ.